Public does have a right to know — and should push it

May 5, 2003

By Bob Johnson

The state Taxation and Revenue Department wanted to make a profit — and compete with private business — by charging whatever it pleased for electronically stored public records of its Motor Vehicle Division. So the department came up with a bill to make that possible.
The scheme almost made it through the 2003 session of the Legislature. It died in a fight with the New Mexico Foundation for Open Government and a group of FOG’s business and press allies.
The struggle dramatized the need for open government activism by business as well as traditional open government watchdogs. It was one of several examples of bad public access law opposed by FOG, and joined at various times by groups such as the New Mexico Press Association, the Greater Albuquerque Chamber of Commerce and the American Civil Liberties Union.
Others, who worked on behalf of open government in connection with various bills, include the businessman who identified the Tax and Rev plot, some savvy legislators, alarmed county clerks and Gov. Bill Richardson. Some examples:
— First, there was the effort to turn the MVD into a profit center. The Inspection of Public Records Act limits charges for public records to the actual cost of copying because providing them “is an essential function of a representative government.” In other words, government’s job is collecting records for the public.
But Taxation and Revenue proposed a law to charge “actual cost” of “creating, maintaining and preserving the integrity of the Database.” What did that mean? Confronted by open government advocates and Sen. Carroll Leavell, R-Jal, agency officials said they didn’t know. They said it was unfair to ask, but that yes, they wanted the government to compete with private businesses that now process raw MVD data to service insurance companies, title companies and automobile dealers in a way that MVD cannot.
The measure passed the House, sailed through two Senate committees and reached the Senate floor on the next-to-last day. But the watchdogs kept working, pointing out to senators of both parties the true intent of the bill. And the Senate voted it down, 27-13.
— The sponsor of another bill insisted it was only to protect victims of domestic violence. But in fact it would have made all information — except names — about victims of any crime confidential. FOG, NMPA and Sen. Michael Sanchez, D-Belen, stopped it in the Senate Judiciary Committee. Sanchez, chairman of the committee, agreed the bill went too far and that public knowledge often results in catching criminals, as in the case of Elizabeth Smart, the kidnapped Salt Lake City teenager. The sponsor finally withdrew the bill to prepare a more specific amendment to the victims’ rights statute to be introduced in another session.
— The state Economic Development Department proposed a law to create a new corporation, a quasi-governmental body, to attract businesses to New Mexico. The corporation board would have been exempt from both the Open Meetings Act and the Inspection of Public Records Act. The attorney general asked FOG to intervene. The bill was amended and, as the session ended, Secretary Rick Homans sent a letter to FOG, NMPA and the AG pledging compliance with both laws.
• Sponsors of other legislation said they thought it would protect veterans from identity theft. Veterans voluntarily file discharge papers with county clerks to obtain a property tax reduction or for safekeeping. The bill would have bloated the Inspection of Public Records Act with three new exceptions requiring the clerks to redact identifying information from those papers. County clerks said their current filing systems would not permit them to comply. The sponsors refused to accept an amendment. One of the bills passed both houses. FOG, NMPA and four county clerks, including the secretary/treasurer of the County Clerks’ Association, wrote letters asking the governor to veto the bill. He agreed and the measure died unsigned in a pocket veto.
Meanwhile, some worthwhile open government bills also failed. They included a resolution sponsored by Rep. Ted Hobbs, R-Albuquerque, for both houses to open conference committees and a bill by Rep. Joseph Cervantes, D-Las Cruces, to provide civil penalties for violating the Open Meetings Act. Both bills died in the House Judiciary Committee.
Chairman Ken Martinez, a Grants Democrat and city attorney, succeeded in amending the open conference bill, and then voted against it. He also argued that civil penalties for violating the Open Meetings Act would chill good people who might not run for public office if they thought breaking the law could be punished in civil lawsuits. Martinez’ committee voted against both bills.
Those or similar measures will pass when the public makes clear to lawmakers that it wants sunshine in government.

Bob Johnson is executive director for New Mexico Foundation for Open Government. For information about FOG, call 505-345-7808.